Hawkins v. Ghiz et al

Filing 58

MEMORANDUM DECISION & ORDER: granting 54 Motion to Reconsider.Having reviewed Plaintiff's Objection that was the focus of that Motion for Reconsideration, the objection 50 is overruled. Signed by Judge David Barlow on 01/29/2021. (kpf)

Case 2:18-cv-00466-DBB-JCB Document 58 Filed 01/29/21 PageID.350 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
ANTHONY BRIAN HAWKINS,

v.

MEMORANDUM DECISION AND
ORDER
• GRANTING [54] MOTION TO
RECONSIDER; and
• OVERRULING [50] OBJECTION

ADAM F. GHIZ, et al.,

Case No. 2:18-cv-00466-DBB-JCB

Plaintiff,

Defendant.

District Judge David Barlow
Magistrate Judge Jared C. Bennett.

THE MOTION TO RECONSIDER
On August 21, 2020, United States Magistrate Judge Jared C. Bennett issued the Report
and Recommendation 1 recommending that Plaintiff’s federal claims in this action be dismissed
with prejudice, that Plaintiff’s state law claims in this action be dismissed without prejudice, and
that Plaintiff’s October 29, 2019 motion for leave to file a second amended complaint be
denied. 2 Although the court adopted the Report and Recommendation, 3 it did so with
modifications because in the time between the issuance of that Report and Recommendation and
the court’s consideration of it, Plaintiff filed a new motion for leave to file a second amended
complaint. 4 Because Magistrate Judge Bennett did not have that motion for leave to file before

1

Report and Recommendation, ECF No. 43, filed August 21, 2020.

2

Id. at 19.

3

Memorandum Decision and Order Modifying and Adopting [43] Report and Recommendation and Denying [48]
Motion to Withdraw No. [29] Motion for leave to File Second Amended Complaint, ECF No. 52, filed November
19, 2020.
4

Motion for Leave to File Second Amended Complaint, ECF No 49, filed September 25, 2020.

Case 2:18-cv-00466-DBB-JCB Document 58 Filed 01/29/21 PageID.351 Page 2 of 4

him, the court did not adopt the futility analysis contained in the August 21, 2020 Report and
Recommendation. Instead, the court dismissed Plaintiff’s federal claims without prejudice, rather
than with prejudice. 5
As part of the order adopting and modifying the Report and Recommendation, the court
acknowledged that the parties were notified of their right to file objections to the Report and
Recommendation within 14 days of its service pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P.
72. 6 The court also noted that Plaintiff requested—and was granted—an extension of time until
October 10, 2020 to file any objection. 7 Although Plaintiff filed an objection, the court
considered that objection untimely because it was filed after the expiration of the extended filing
period. 8
Plaintiff has now filed a motion to reconsider the order overruling his objection. 9 In
support of that motion to reconsider, Plaintiff argues that under the “prison mailbox rule,” his
objection should have been considered timely. 10 That rule establishes that “a pro se prisoner’s
notice of appeal will be considered timely if given to prison officials for mailing prior to the
filing deadline, regardless of when the court itself receives the documents.” 11 The Tenth Circuit
Court of Appeals has acknowledged that the prison mailbox rule also “applies equally to an
inmate’s filing of a civil rights complaint” 12 and that there are “obvious practical reasons for

5

Memorandum Decision and Order Modifying and Adopting [43] Report and Recommendation and Denying [48]
Motion to Withdraw No. [29] Motion for leave to File Second Amended Complaint at 3.

6

Id. at 1–2.

7

Id. at 2.

8

Id.

9

Motion for Reconsideration, ECF No. 54, filed December 3, 2020.

10

Id. at 3.

11

Price v. Philpot, 420 F.3d 1158, 1163–64 (10th Cir. 2005) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988)
emphasis added).

12

Id. at 1164.

2

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imposing a uniform rule to all inmate filings[.]” 13 Based on that language, other courts within
this circuit “apply the mailbox rule to all court filings” by pro se inmates. 14
Based on Plaintiff’s motion and supporting documents, 15 the court will apply the prison
mailbox rule to this motion and treat it as if it were timely filed. The Court therefore grants
Plaintiff’s motion to reconsider and will address the merits of his objection.
RECONSIDERATION OF PLAINTIFF’S OBJECTION
Plaintiff’s Objection to the Report and Recommendation consists of seventeen separate
objections. 16 The central focus of these objections is that Plaintiff should be provided with leave
to amend his complaint and dismissal of any of his causes of action should be without
prejudice. 17 However, as the court noted previously, Plaintiff did file a renewed motion for leave
to file an amended complaint after the issuance of the Report and Recommendation and before
his Objection. That filing caused the court to modify the Report and Recommendation so that the
dismissal of Plaintiff’s federal claims was without prejudice and to direct Magistrate Judge
Bennett to review Plaintiff’s latest motion for leave to file an amended complaint.
It is unnecessary here for the court to address the merits of Plaintiff’s objection because
the court already modified the Report and Recommendation to permit consideration of Plaintiff’s
latest motion to amend. Therefore, Plaintiff’s objection is overruled, and the previous order
modifying the Report and Recommendation stands.

13

Id.

14
Domenech v. United States, 2019 WL 1052293, at *3 (D. Colo. Feb. 11, 2019) (citing United States v. GonzalezArenas, 2016 WL 10859436, at *2 n.2 (D. Colo. Apr. 22, 2016)).
15

Motion for Reconsideration, Exhibit 1, Declaration at 1, ECF No. 54-1, filed December 3, 2020.

16

Plaintiff’s Objection to Report and Recommendation, ECF No. 50, filed October 14, 2020.

17

See id. at 2, 4, 10–11.

3

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ORDER
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration 18 is GRANTED.
Having reviewed Plaintiff’s Objection 19 that was the focus of that Motion for Reconsideration,
that Objection 20 is OVERRULED.
Signed January 29, 2021.
BY THE COURT

________________________________________
David Barlow
United States District Judge

18

Motion for Reconsideration, ECF No. 54, filed December 3, 2020.

19

Plaintiff’s Objection to Report and Recommendation, ECF No. 50, filed October 14, 2020.

20

Id.

4